From Law.com: "A military judge at Guantanamo on Thursday rejected a White House request to suspend a hearing for the alleged mastermind of the USS Cole bombing, creating an unexpected challenge for the administration as it reviews how America puts suspected terrorists on trial.

The judge, Army Col. James Pohl, said his decision was difficult but necessary to protect "the public interest in a speedy trial." The ruling came in the case against Abd al-Rahim al-Nashiri. The bombing of the Navy destroyer in 2000 in the harbor of Aden, Yemen, killed 17 U.S. sailors.

It seemed to take the Pentagon and White House by surprise.

"We just learned of the ruling ... and we are consulting with the Pentagon and the Department of Justice to explore our options in the case," said White Press secretary Robert Gibbs, adding that he doubted the decision would hamper the administration's ability to decide how to move forward from Guantanamo." Full Story from Law.com... [Michele Berry]

NPR.org: On Day 2 of his presidency, Barack Obama signed executive orders "designed to close Guantanamo Bay prison within a year, prohibit extreme interrogation practices and revisit military tribunals for suspected terrorists.

'Shutting the detention facility is intended to show that U.S. foreign policy is in metamorphosis. The message that we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism' but will do so 'in a manner consistent with our values and our ideals," Obama said while signing the orders. Full story from NPR.org... [Michele Berry]

Seton Hall LawProf Mark Denbeaux, Iowa LawProf Tung Yin, and UC Davis LawProf Diane Amann comment on the dilemma the Obama administration faces as it sifts through the Guantanamo cases. A "charge or release" policy seems to be the consensus; there is also agreement that some prosecutions may not be possible due to evidence tainted by torture techniques. But Yin points out that it may be a bad move to release high profile detainees such as Khaled Shaikh Mohammed, who admitted to being the mastermind of the 911 attacks but who also was subjected to waterboarding and other harsh interrogation tactics. "In a regular criminal case we would say the government violated the constitutional rules so the remedy is to suppress the evidence. The government can't make its case without the suppressed evidence so the defendant has to be let go...I think there is going to be some discomfort level with simply releasing Khaled Shaikh Mohammed." Yin says the prospect of releasing so-called high value terror suspects may force the new administration to create a system of preventive incapacitation similar to Bush's enemy combatant detention.

But Amann warns that "it would be a mistake to continue to rely on a version of the Bush enemy combatant detention regime." "Are we going to depart from 200 years of legal tradition prohibiting this kind of detention [without charge] and craft an entirely new program" for the probable handful of detainees who pose a threat?

Denbeaux points out that releasing terror suspects could advance US intelligence. "Agents could be tasked to watch them, trace their movements overseas, and tap their phones. If former detainees seek to contact Al Qaeda, their movements and contacts could provide fresh intelligence on the terror group. To me, released detainees are a window into the world that is out there, and if we are not looking through that window it is a waste." More from the Christian Science Monitor... [Michele Berry]

California's Child Abuse Central Index, a database of known or suspected child abusers, violates procedural due process in failing to give listed persons a fair opportunity to challenge the allegations against them and obtain delisting, the U.S. Court of Appeals for the Ninth Circuit held Nov. 5 (Humphries v. Los Angeles County, 9th Cir., No. 05-56467, 11/5/08).

Being listed on the CACI is stigmatizing in itself, and it also makes access to certain licenses, jobs, and benefits less likely, Judge Jay S. Bybee said. But the state spells out no procedure for getting delisted. Bybee thus concluded that the innocent plaintiffs' being listed on CACI resulted in the “stigma-plus” needed under Paul v. Davis, 424 U.S. 693 (1976), for their reputational injury to be actionable under the 14th Amendment's due process clause.

The court followed Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994), interpreting a similar New York statute, but rejected Smith v. Siegelman, 322 F.3d 1290 (11th Cir. 2003), involving a variant Alabama law, “[t]o the extent that the Eleventh Circuit refuses to recognize a liberty interest [under the due process clause] where the state functionally requires agencies to consult a stigmatizing list prior to conferring a government benefit.”

Looking tired and resigned, Shaneka Penix stood before U.S. District Judge William D. Quarles in his Baltimore courtroom yesterday morning and quietly asked for mercy. "I believe I deserve a second chance," she said.

Penix was caught selling crack cocaine in August and September of last year. It was her first serious infraction. But because of her affiliation with the Maryland division of a drug gang known as the Tree Top Piru Bloods, she was charged and convicted of conspiracy under the Racketeer Influenced and Corrupt Organizations act, or RICO. At 23, Penix, the mother of a 3-year-old girl, was facing a minimum mandatory prison sentence of 10 years.

I got into a very interesting discussion last night at the Morris K. Udall American Inn of Court meeting, taking the position, as a legal and disciplinary matter, that the death of an indispensable prosecution witness did not preclude a prosecutor from negotiating a plea, even without first disclosing that the witness has become unavailable. The leading case is the unanimous People v. Jones, 375 N.E.2d 41(N.Y.), cert. denied, 439 U.S. 846 (1978), which begins: "We
hold that defendant was not denied due process when the District
Attorney's office did not disclose during plea negotiations that it had
received information that the complaining witness had died." Brady does not apply: death of a witness was not "exculpatory evidence i.e., evidence favorable to an accused where the
evidence is material either to guilt or to punishment." In addition, the court found no cases faulting "the failure of a
prosecutor before trial or during plea negotiations to disclose
nonevidentiary information pertinent to the tactical aspects of a
defendant's determination not to proceed to trial." Does anyone know of any cases to the contrary? I found none.

So if there is no defect in the judgment of conviction, is there at least an ethical impropriety? Surely a prosecutor should unilaterally dismiss a prosecution if there is insufficient admissible evidence to proceed to trial, if the prosecutor knows that without a plea dismissal is the only option. But under positive law ethical rules, this is not so. Arizona Ethical Rule 3.8(a), like the ABA Model, provides that a prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." There is no greater evidentiary requirement.

If the ethical rules do not require dismissal, how about the more aspirational ABA Criminal Justice Standards, Prosecution Function, which offer many "shoulds," indicating good practice, beyond the "musts" of the disciplinary rules? In addition to requiring probable cause, Standard 3-3.9(a) provides: "A
prosecutor should not institute, cause to be instituted, or permit the
continued pendency of criminal charges in the absence of sufficient
admissible evidence to support a conviction." This might be read to suggest that a prosecutor should unilaterally dismiss when the key witness dies. But the Official Comments reject this interpretation: "This Standard takes no position on this question."

Of course, a prosecutor cannot make false or misleading statements, or violate other rules. For example, Arizona Ethics Opinion 94-07 holds that it is unethical to negotiate a plea with if the prosecution's material discovery obligations are unfulfilled, so a witness list must be updated to show that the key witness will not be called. But in the bustle of fast pleas and form pleadings in in a misdemeanor court, it is easy to imagine that accurate disclosure would not be closely examined in the face of a sweet plea.

At first, I thought that even if non-disclosure was legal and would not subject a prosecutor to discipline, it was bad practice, because other lawyers in the community would feel deceived. But then I wondered whether it was appropriate to protect a lawyer's own reputation at the expense of potentially convicting a dangerous felon. Maybe it is not unjust if a plea offer unaccompanied by factual misrepresentations or discovery violations leads a defendant with a lawyer, in open court, to truthfully admit their criminal offense and take responsibility for it. What am I missing?

From jacksonville.com: Only weeks before Chad Heins' murder trial in 1996,
a Jacksonville prosecutor sent a memo asking a state crime lab
supervisor to downplay findings that stray hairs found on the victim's
body came from an unknown person."I need to structure your testimony carefully so
as to convince the jury that the unknown hairs are insignificant,"
Assistant State Attorney Stephen Bledsoe wrote in a letter recently
obtained by the Times-Union.

In December 1996, a jury
convicted Heins of the first-degree murder of his sister-in-law in her
Mayport apartment. He was sentenced to life in prison until new DNA
tests led to his release last month.

Bledsoe's letter was among
thousands of pages of documents examined by Heins' lawyers after a
judge allowed re-testing of DNA in the case. Although the attorneys
don't believe it affected the outcome of the case, the letter shows a
"cavalier disregard for the actual evidence," said Jennifer Greenberg,
policy director of the Innocence Project of Florida, which worked for
Heins' release.

"It actually made my stomach
turn," Greenberg said Tuesday. "This is not a game. This is justice.
These are people's lives and they matter and the truth matters." Rest of Article. . . [Mark Godsey]

William & Mary Lee Professor of Law William W. Van Alstyne, one of the nation’s foremost constitutional law scholars, has signed two collaborative briefs written with other legal scholars and former government officials. The first is for a case pending in the Sixth Circuit Court of Appeals and concerns President Bush’s authorization of the domestic spying program. The second is for a case pending in the Fourth Circuit Court of Appeals and addresses joint presidential and congressional efforts to suspend the writ of habeas corpus.

On Jan. 9, 2006, Van Alstyne co-signed a letter to Congress expressing concern about the National Security Agency’s domestic spying program, a program secretly authorized by the President that allowed the agency to conduct electronic surveillance without warrants of anyone in the United States. Co-signers of the letter included a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch and the deans or former deans of Yale, Stanford and the University of Chicago law schools. The letter stated that the Bush administration should have pursued a legislative amendment to the Foreign Intelligence Surveillance Act (FISA) before moving forward with the spying program.

Shortly afterward, Van Alstyne and the group wrote a second letter to Congress, dated Feb. 2, 2006, in response to a Jan. 19 memoradum issued by the Justice Department.

Van Alstyne joined with the same group that wrote the letters to file a brief in a case currently pending in the Sixth Circuit Court of Appeals. Van Alstyne said he was motivated to collaborate on the brief because he has “a genuine concern as to whether or not the program was permitted under the Constitution and was inconsistent with certain acts of Congress.”

In this Sixth Circuit case, the government is appealing a federal district court decision holding, as the letters to Congress that Van Alstyne co-signed suggested, that the executive order authorizing domestic surveillance without going through the court for a warrant was invalid. The case was argued earlier this year and the parties are awaiting the court’s decision.

In a separate case, Van Alstyne joined in a brief with colleagues from Harvard, Duke, Stanford, and the University of Virginia addressing efforts to suspend the writ of habeas corpus that people who are being held in custody can invoke when they want the courts to determine if there is any legitimate reason for them to be held. The jointly-authored brief was filed with the Fourth Circuit Court of Appeals in early 2007.

In examining the extent to which Congress can make habeas corpus unavailable, Van Alstyne said, “Habeas corpus is a fundamental part of the Constitution. This is a very important issue of American justice and human rights.” The filed brief concludes that Congress has not removed authority of courts to hear these types of cases, as the President has suggested, and that they should be heard.

From NPR.com: A federal appeals court in Washington, D.C., rules that detainees at the U.S. military prison at Guantanamo Bay, Cuba, have no right to challenge their detention in U.S. courts. The case is expected to move on to the U.S. Supreme Court. Listen. . . [Mark Godsey]

billingsgazette.com: The Montana's lone court specifically for mentally ill people accused of crimes is now in full operation here, after a startup that began with initial funding in 2003.

Without the Missoula Mental Health Court, many of the defendants who pass through it would languish in jail.The court works with prosecutors, defense attorneys and treatment agencies to help people accused of crimes that appear linked to mental illnesses.

"People noticed that drug treatment courts (for addicted offenders) were having positive results, so they began to look at other populations in the criminal justice system that were defined by very specific aspects of the offenders' lives," said Theresa Conley, coordinator for Missoula's mental-health court.

The goal is to divert nonviolent offenders, who have significant mental disorders, into treatment programs rather than keeping them in jail.

Proponents say treating mentally ill defendants less as criminals and more as people who are sick stands to better meet their needs, ease jail crowding and save money. A judge presiding over mental-health court might allow a person convicted of a nonviolent crime the option of participating in counseling or receiving medication, rather than serving jail time.

"We have inadequate mental-health care in Montana," said Standing Master Brenda Desmond, judge for the Missoula court. "We're a far cry from solving the problem, but incarceration is certainly not the solution." Rest of Article. . . [Mark Godsey]

William Teesdale, an attorney with the Federal Public Defender's Office in Portland, Oregon has been seeking the release of a Guantanamo Bay detainee and has turned to YouTube to get the message out about his client. Here's the description of Teesdale's Guantanamo Unclassified video, from Legal Pad:

Teesdale has released a short documentary video in which, on a beach in Guantanamo bay, he explains that hospital worker and teacher Adel Hamad has been held for years in detention and denied release even after a member of the military tribunal reviewing his case called his incarceration “unconscionable.” The video includes interviews with Hamad’s coworkers from Afghanistan, where he’d worked for a hospital supported by a charity that the CIA seems to think might have counter-American ideals. Watch the video here. . . [Michele Berry]

From NPR.org: The Patriot Act allows the president to appoint new U.S. attorneys without confirmation hearings when a vacancy arises. Some former U.S. attorneys say the flexibility puts pressure on prosecutors to pursue Washington's agenda instead of using their own judgment. Listen to the story here. . . [Michele Berry]

From BNA.com: Today, in Carey v. Musladin, No. 05-785, the court held that a state court did not unreasonably apply established federal law when it ruled that the wearing of buttons depicting a murder victim by members of the victim's family in front of the jury did not deny the defendant a fair trial. The court noted that while it has previously held that some government-sponsored practices, such as compelling an accused to wear jail garb in front of the jury, may infringe on fair trial rights, it has never directly dealt with whether conduct by private spectators such as the wearing of buttons or ribbons in the courtroom is potentially so prejudicial as to implicate those concerns.

From nj.com: Michael Tucker got life in prison for killing his mother at her Piscataway home.

Lawrence Brown was convicted of assaulting a Phillipsburg man with a beer bottle so savagely the victim required 900 stitches and lost part of his ear.

A jury found Ahmed Elkwisni guilty in the gunpoint robbery of Bob's Market in Garfield.

All three men say they invoked the right to remain silent while the crimes were under investigation, but the right was violated -- and they were denied a fair trial -- because once the case was before a jury, prosecutors questioned the silence or suggested it implied guilt.

Tomorrow, the New Jersey Supreme Court is scheduled to take up this trio of cases, which could help define what silence is and how it can, or can't, be used at trial. The cases are being closely watched by a divided legal community and could have national implications, experts say.

"The fact that they've taken these three different cases will give them the opportunity to really lay out the parameters of how far we are going to go to protect the right to silence in New Jersey," said Alison Perrone, who represents Tucker.

Defense attorneys say defendants are not obliged to prove their innocence. They have an absolute right not to incriminate themselves because it is the state's burden to prove their guilt. Their silence -- even if it means staying quiet about certain details or not coming forward with an explanation -- is still silence and cannot be used in court. Rest of Article. . . [Mark Godsey]

Today the Supreme Court heard arguments on whether a crime victim's family has the right to sit in court wearing buttons with pictures of the victim. The accused murderer's conviction was thrown out because the buttons may have had a prejudicial effect on the jury. Listen to commentary on NPR.org. . . [Michele Berry]

washingtonpost.com: A civil jury in Prince George's County awarded nearly $6.4 million yesterday to a man who spent more than eight months in jail after he was interrogated for over 38 hours by homicide detectives, who then charged him with murdering his wife based solely on statements he allegedly made during the marathon interviews.

The award to Keith Longtin after the two-week trial is believed to be the largest ever made by a jury in a civil case involving abuse by Prince George's police. Longtin, now 50, was released from jail only after DNA evidence found in his slain wife was matched with a serial rapist. The sexual offender was later convicted of the murder.

The jury found that county detectives engaged in a pattern of violating the rights of defendants, said Cary J. Hansel, one of Longtin's attorneys. "We hope this signals the end of lengthy, coercive police interrogations in Prince George's County," said Timothy F. Maloney, Longtin's other attorney.